Citation Nr: 1008431
Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 07-07 622 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a right hand
condition, to include as secondary to a service-connected
left knee disability.
2. Entitlement to service connection for a right elbow
condition, to include as secondary to a service-connected
left knee disability.
3. Entitlement to service connection for a bilateral foot
condition, to include as secondary to a service-connected
left knee disability.
4. Entitlement to a rating higher than 20 percent for
residuals of a left knee injury with instability.
5. Entitlement to a rating higher than 10 percent for
degenerative joint disease of the left knee with limitation
of motion.
6. Entitlement to an effective date prior to September 1,
2007, for additional compensation for a dependent child based
upon school attendance.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
T. Azizi-Barcelo, Counsel
INTRODUCTION
The Veteran served on active duty from July 1973 to November
1974.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 2005 rating determination of a Department
of Veterans Affairs (VA) Regional Office (RO), that denied
increased ratings for a left knee disability. The appeal
also arises from a March 2008 rating decision that denied
service connection for right hand, right elbow, and bilateral
foot conditions. Finally, the Veteran is appealing an
October 2008 decision that denied entitlement to an effective
date prior to September 1, 2007, for additional compensation
for a dependent child. In April 2009, the Veteran testified
at a video conference hearing before the undersigned.
FINDINGS OF FACT
1. A right hand condition was not affirmatively shown to
have had onset during service; degenerative arthritis of the
right wrist was not manifest to a compensable degree within
one year of separation from service; a right hand condition,
first documented after service, is not shown to be related to
an injury, disease, or event of service origin or to a
service-connected left knee disability.
2. A right elbow condition was not affirmatively shown to
have had onset during service; a right elbow condition, first
documented after service, is not shown to be related to an
injury, disease, or event of service origin or to a service-
connected left knee disability.
3. A bilateral foot condition was not affirmatively shown to
have had onset during service; a bilateral foot condition,
first documented after service, is not shown to be related to
an injury, disease, or event of service origin or to a
service-connected left knee disability.
4. Residuals of a left knee injury with instability are
manifested by no more than moderate laxity or subluxation.
5. Arthritis of the left knee is manifested by flexion to
100 degrees with pain and extension to 5 degrees, without
additional functional loss due to pain or instability.
6. In July 2008, VA received a Request for Approval of
School Attendance, VA form 21-674, in which the Veteran
indicated that W.D. began attending the University of
Arkansas in August 2006 and was expected to graduate in
August 2010; according to an October 2008 VA letter to the
Veteran, the Veteran's VA compensation benefits were adjusted
to include W.D. effective September 1, 2007.
CONCLUSIONS OF LAW
1. A right hand condition was not incurred in or aggravated
by service; service connection for degenerative arthritis of
the right wrist as a chronic disease may not be presumed to
have been incurred in service; and a right hand condition is
not proximately due to or aggravated by a service-connected
left knee disability. 38 U.S.C.A. §§ 1110, 1112, 5107 (West
2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009).
2. A right elbow condition was not incurred in or aggravated
by service; and a right elbow condition is not proximately
due to or aggravated by a service-connected left knee
disability. 38 U.S.C.A. §§ 1110, 5107 (West 2009); 38 C.F.R.
§§ 3.303, 3.310 (2009).
3. A bilateral foot condition was not incurred in or
aggravated by service; and a bilateral foot condition is not
proximately due to or aggravated by a service-connected left
knee disability. 38 U.S.C.A. §§ 1110, 5107 (West 2009); 38
C.F.R. §§ 3.303, 3.310 (2009).
4. The criteria for a rating higher than 20 percent for
instability of the left knee have not been met. 38 U.S.C.A.
§ 1155, 5107 (West 2009); 38 C.F.R. §§ 4.40, 4.45, Diagnostic
Code 5257 (2009).
5. The criteria for a rating higher than 10 percent for
degenerative joint disease of the left knee with limitation
of motion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
2009); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes
5003, 5010, 5260, 5261, (2009).
6. The criteria for an effective date prior to September 1,
2007, for additional compensation for a dependent child based
upon school attendance have not been met. 38 U.S.C.A. §§
1115, 5110, 5111 (West 2009); 38 C.F.R. §§ 3.31, 3.204,
3.400, 3.667 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to notify and to assist
Upon receipt of a complete or substantially complete
application, VA must provide notice to the claimant that:
(1) informs the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) informs the claimant about the information and evidence
that VA will seek to provide; and (3) informs the claimant
about the information and evidence the claimant is expected
to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi,
18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008).
Regarding the claim of entitlement to an effective date for
additional compensation for a dependent child, this case is
one in which the law is dispositive of the issue. Sabonis v.
Brown, 6 Vet. App. 426 (1994). Under such circumstances, the
duties to notify and assist are not applicable. Mason v.
Principi, 16 Vet. App. 129 (2002). Further, VA has no duty
to assist the Veteran in obtaining evidence where, as here,
there is no reasonable possibility that any further
assistance would aid him in substantiating his claim. 38
U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet.
App. 362 (2001). However, in a March 2009 statement of the
case, the RO informed the Veteran of the provisions of 38
C.F.R. § 3.667, which relates to the matter of additional
allowances for dependent children. The Veteran has been
provided the opportunity to submit evidence and argument in
support of his claim. The Board finds that there is
sufficient evidence to make a determination in this case, and
the Veteran is not prejudiced by a decision at this time.
With regard to the claims of service connection and the claim
for increased disability ratings, the RO sent correspondence
in February 2005, April 2005, December 2007, and May 2008;
rating decisions in May 2005, and March 2008; and statements
of the case in January 2007, and October 2008. Those
documents discussed specific evidence, particular legal
requirements applicable to the claims, evidence considered,
pertinent laws and regulations, and reasons for the
decisions. VA made all efforts to notify and to assist the
appellant with evidence obtained, the evidence needed, and
the responsibilities of the parties in obtaining the
evidence. The Board finds that any defect of timing or
content of the notice to the appellant is harmless because of
the thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claims with an adjudication of the claims by the RO
subsequent to the claimant's receipt of compliant notice.
There has been no prejudice to the appellant, and any defect
in the timing or content of the notices has not affected the
fairness of the adjudication. Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed.
Cir. 2006) (specifically declining to address harmless error
doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Thus, VA has satisfied its duty to notify the appellant and
had satisfied that duty prior to the final adjudication in
the March 2009 statement of the case, and the October 2008
supplemental statements of the case. A statement of the case
or supplemental statement of the case can constitute a
readjudication decision that complies with all applicable due
process and notification requirements if adequate notice is
provided prior to that adjudication. Mayfield v. Nicholson,
499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate
notice prior to a readjudication, including in a statement of
the case or supplemental statement of the case, cures any
timing defect associated with inadequate notice or the lack
of notice prior to the initial adjudication. Prickett v.
Nicholson, 20 Vet. App. 370 (2006).
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. The VA obtained medical examinations in relation
to the claim for increased ratings for a left knee
disability. The Board also notes that the Veteran was
scheduled for a VA examination to evaluate the claims of
service connection in December 2006, but the Veteran failed
to report, and an opinion as to causation was offered by the
knee examiner at the November 2007 VA examination. The duty
to assist is not a one-way street. If a veteran wishes help
in developing his claim, he cannot passively wait for it in
those circumstances where he may or should have information
that is essential in obtaining putative evidence. Wood v.
Derwinski, 1 Vet. App. 190 (1991). Where the Veteran fails
to report to an examination in conjunction with a claim for
service connection, the claim must be adjudicated based on
the evidence of record. 38 C.F.R. § 3.655 (2009). In any
event, although a rescheduled VA examination to evaluate the
claims of service connection was not provided, the evidence
does not indicate that the disabilities may be associated
with an event, injury, disease in service, or a service-
connected disability, and the evidence does not show good
cause for failing to report to the examination. VA is not
required to provide the Veteran with a medical examination
absent a showing by the Veteran of a causal connection
between the claimed disability and service. For these
reasons, remanding for VA medical examination is not
warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38
C.F.R. § 3.159(c)(4)(i). Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law. Furthermore, the Board finds that if there is any
deficiency in the notice to the Veteran or the timing of the
notice it is harmless error because the appellant had a
meaningful opportunity to participate effectively in the
processing of the claims. Overton v. Nicholson, 20 Vet. App.
427 (2006) (Board erred in relying on post-decisional
documents for concluding adequate notice was provided, but
the Veteran was afforded a meaningful opportunity to
participate effectively in the adjudication of his claims,
and therefore the error was harmless).
Service Connection
Service connection may be established for a disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.303, 3.304 (2009). Disability
which is proximately due to or the result of a disease or
injury incurred in or aggravated by service will also be
service-connected. 38 C.F.R. § 3.310 (2009).
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service, or if
preexisting such service, was aggravated by service. This
may be accomplished by affirmatively showing inception or
aggravation during service. 38 C.F.R. § 3.303(a) (2009).
For the showing of chronic disease in service there is a
required combination of manifestations sufficient to identify
the disease entity and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word chronic. If
chronicity in service is not established, a showing of
continuity of symptoms after discharge is required to support
the claim. 38 C.F.R. § 3.303(b) (2009).
Service connection may also be warranted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
If a Veteran served 90 days or more on active duty, service
incurrence will be presumed for certain chronic diseases,
including arthritis, if manifest to a compensable degree
within the year after active service. 38 U.S.C.A. § 1112;
38 C.F.R. §§ 3.307, 3.309.
A disability which is proximately due to or the result of a
service-connected disease or injury shall be service-
connected. 38 C.F.R. § 3.310 (2009). Secondary service
connection is permitted based on aggravation. Compensation
is payable for the degree of aggravation of a non-service-
connected disability caused by a service-connected
disability. Allen v. Brown, 7 Vet. App. 439 (1995). A
determination of service connection requires a finding of the
existence of a current disability and a determination of a
relationship between the disability and an injury or disease
incurred in service. Establishing service connection on a
secondary basis essentially requires evidence sufficient to
show: (1) that a current disability exists; and (2) that the
current disability was either caused or aggravated by a
service-connected disability. 38 C.F.R. § 3.303, 3.310.
The Veteran contends that he currently suffers from a right
hand condition, right elbow condition, and bilateral foot
condition, which he claims are secondary to his service-
connected left knee disability. He specifically claims that
his left knee gave way and caused him to fall and incur
injuries, and those injuries developed into degenerative
arthritis in the right hand, right elbow, and feet.
The service medical records contain no complaints, diagnoses,
or treatment for a right hand condition, right elbow
condition, or bilateral foot condition.
After service, a clinical treatment note in August 1991,
recorded findings of arthritis in the right wrist. Private
treatment records in April 2000, noted bilateral swelling of
the lower extremities after the Veteran fell and injured the
4th and 5th left toes.
Clinical treatment notes in 2001, show complaints of right
elbow and right forefinger pain and swelling. The clinician
noted treatment for gout. In December 2002, a clinician
indicated that the Veteran had gout in the right hand and
wrist. A VA clinical treatment note in March 2007 contained
a history of gout, with the first gout attack 10 years prior,
along with complaints of swelling of the left knee, foot,
right wrist, and right elbow. In March 2007, it was reported
that the Veteran's left knee swelled and buckled while he was
playing golf. The assessment was arthralgia with a history
of gout. In October 2007, the Veteran provided a history of
severe gouty arthritis since 2002. He stated that flares of
gout left him incapable of moving his hands, and prevented
him from walking. The Veteran indicated that he developed
degenerative joint changes in the right elbow and right ring
finger coincident with onset of flare-ups of gout. In
January 2008, the Veteran reported left shoulder pain after
he braced himself after a fall that occurred when his knee
buckled.
On joints VA examination in November 2007, the examiner
opined that the Veteran's left knee swelling was related to
his nonservice-connected gout. The examiner explained that
his other joints would swell along with the knee and
treatment for gout would effectively improve his condition.
At the April 2009 personal hearing, the Veteran testified
that he had been diagnosed with arthritis of the right elbow
and right wrist. The Veteran denied problems with his hand
prior to the fall caused by his left knee. He described
movement limitations during flare-ups of his condition
brought on by activity and weather. The Veteran reported
swelling of the feet caused by the left knee arthritis.
Flare-ups of the claimed conditions would cause pain and
swelling resulting in immobilization. He treated the
conditions with anti-inflammatory medication and steroid
injections.
Competency is a legal concept in determining whether medical
or lay evidence may be considered, in other words, whether
the evidence is admissible as distinguished from credibility,
that is, the probative value of the evidence once the
evidence is admitted. Rucker v. Brown, 10 Vet. App. 67
(1997).
Competent lay evidence means any evidence not requiring that
the proponent have specialized education, training, or
experience. Lay evidence is competent if it is provided by a
person who has knowledge of facts or circumstances and
conveys matters that can be observed and described by a lay
person. 38 C.F.R. § 3.159.
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer a medical diagnosis, statement, or
opinion. 38 C.F.R. § 3.159.
The service medical records do not show any finding of signs
or symptoms consistent with a right hand condition, a right
elbow condition, or a bilateral foot condition. Therefore,
the Board finds the conditions were not affirmatively shown
to have had onset during service and a showing of continuity
after discharge is required to support the claims.
38 U.S.C.A. § 1110; 338 C.F.R. §§ 3.303(a), 3.303(b).
Also there is no competent evidence either contemporaneous
with or after service that a right hand condition, a right
elbow condition, or a bilateral foot condition, were observed
during service, and the principles of service connection,
pertaining to chronicity and continuity of symptomatology do
not apply. Savage v. Gober, 10 Vet. App. 488 (1997); 38
C.F.R. § 3.303(b).
After service, a clinical treatment note in August 1991,
recorded findings of arthritis in the right wrist.
Additionally, treatment for pain and swelling of the lower
extremities, right elbow, and right forefinger, was noted
after 2000. The period without documented complaints,
findings or symptoms of a right hand condition, a right elbow
condition, or a bilateral foot condition, from 1973 to 1991
and after 2000, respectively, interrupts continuity and is
persuasive evidence against continuity of symptomatology.
38 C.F.R. § 3.303(b); Maxson v. Gober, 230 F.3d 1330 (Fed.
Cir. 2000). The absence of symptoms constitutes negative
evidence and opposes the claims. Forshey v. Principi, 284
F.3d 1335 (Fed. Cir. 2002).
Furthermore, arthritis of the right wrist was diagnosed well
beyond the one-year presumptive period for service connection
for arthritis as a chronic disease and the Board finds that
presumptive service connection is not warranted. 38 U.S.C.A.
§§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.
The Board now turns to the Veteran's claim that he developed
a right hand condition, a right elbow condition, and
bilateral foot condition, secondary to his service-connected
left knee disability.
Although the Veteran is competent to describe orthopedic
symptoms, such as pain, joint pain is not a condition under
case law whereby lay observation has been found to be
competent to establish an orthopedic diagnosis and the
determination as to the presence of the disability therefore
is medical in nature, that is, not capable of lay
observation. As for service connection for residuals of an
injury to the right hand, right elbow and feet, to include
arthritis, first diagnosed after service under 38 C.F.R. §
3.303(d), although the Veteran is competent to describe
symptoms of an injury, degenerative arthritis is not a
condition under case law that has been found to be capable of
lay observation. Therefore the determination as to the
presence of arthritis is medical in nature, that is, not
capable of lay observation, and competent medical evidence is
needed to substantiate the claim. Savage v. Gober, 10 Vet.
App. 488 (1997) (on the question of whether a Veteran has a
chronic condition since service, the evidence must be medical
unless it relates to a condition as to which, under case law,
lay observation is competent); Barr v. Nicholson, 21 Vet.
App. 303 (2007) (lay testimony is competent to establish the
presence of observable symptomatology, where the
determination is not medical in nature and is capable of lay
observation).
Where, the determinative questions involve a medical
diagnosis or causation, not capable of lay observation,
medical evidence of an association or link between the
current disability and continuity of symptomatology is needed
and where a lay assertion on medical causation is not
competent evidence, competent medical evidence is required to
substantiate the claim. Grottveit v. Brown, 5 Vet. App. 91
(1993).
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer a medical diagnosis or medical opinion.
38 C.F.R. § 3.159.
As a layperson, the Veteran is not qualified through
education, training, and expertise to offer opinions on a
medical diagnosis that is not capable of lay observation, or
on medical causation where a lay assertion of medical
causation is not competent evidence. Therefore, the Board
finds that the statements from the Veteran offered as proof
of service connection between a right hand condition, a right
elbow condition, and bilateral foot condition, and the
service-connected left knee disability, are not competent
evidence.
As for the competent medical evidence on the question of
secondary service connection, the competent medical evidence
is against the claim. While falls were documented in April
2000 and January 2008, there is nothing in the record
consistent with a finding that a fall caused by the service-
connected left knee disability led the Veteran to develop a
bilateral foot, right hand or right elbow disability.
Moreover, the evidence of record does not attribute the
claimed disabilities to the service-connected left knee
disability. Instead, the post-service treatment records show
that the Veteran's complaints of pain and swelling of the
hands, lower extremities, right elbow, and wrist, are
associated with flare-ups of nonservice-connected gouty
arthritis. Significantly, the VA examiner in November 2007,
opined that the Veteran's left knee swelling was related to
his nonservice-connected gout, and that other joints would
swell along with the knee and were improved by treatment for
gout. Therefore, the Board finds that the evidence shows
that the claimed disabilities are more likely the result of
nonservice-connected gout. There is no evidence of record to
show that any gout is related to the Veteran's service.
The competent medical evidence does not relate a right hand
condition, right elbow condition, or bilateral foot
condition, by causation or by aggravation, to the service-
connected left knee disability or to service. Degenerative
arthritis of the right hand did not manifest to a compensable
degree within one year following separation from service.
The Board may consider only competent, independent medical
evidence to support its finding on a question of medical
causation. The evidence does not show that any gout, which
is shown by the evidence of record to be the more likely
causation of the claimed disabilities, was incurred in or
aggravated by service or manifested within any applicable
presumptive period. Therefore, the Board finds that the
preponderance of the evidence is against the Veteran's claims
for service connection and those claims must be denied.
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Increased Ratings
A disability rating is determined by the application of VA's
Schedule for Rating Disabilities. 38 C.F.R. Part 4. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
Rating factors for a disability of the musculoskeletal system
include functional loss due to pain supported by adequate
pathology and evidenced by visible behavior of the claimant
undertaking the motion, weakened movement, excess
fatigability, swelling, and pain on movement. 38 C.F.R. §§
4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also
with any form of arthritis, painful motion is factor to be
considered. 38 C.F.R. § 4.59.
The evaluation of the same disability under various diagnoses
is to be avoided. 38 C.F.R. § 4.14. However, the regulation
regarding pyramiding does not preclude the assignment of
separate evaluations for separate and distinct symptomatology
where none of the symptomatology justifying an evaluation
under one diagnostic code is duplicative of or overlapping
with the symptomatology justifying an evaluation under
another diagnostic code. 38 C.F.R. § 4.14; Esteban v. Brown,
6 Vet. App. 259, 262 (1994).
The Board will consider entitlement to staged ratings to
compensate for times since filing the claim when the
disability may have been more severe than at other times
during the course of the claim on appeal. Fenderson v. West,
12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505
(2007).
VA has a duty to acknowledge and consider all regulations
that are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons and
bases for its conclusions. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
During active service, the Veteran suffered from left knee
pain which resulted from a pre-service left knee injury. In
a rating decision in July 1994, the RO granted service
connection for a left knee disability. The current claim for
an increased rating was received at the RO in December 2004.
The Veteran's left knee disability has been assigned a 10
percent rating for degenerative arthritis under Diagnostic
Code 5003, and 20 percent rating for instability under
Diagnostic Code 5257. 38 C.F.R. § 4.71a.
On VA examination in March 2005, the Veteran complained of
worsening of left knee symptoms with swelling and pain on
prolonged standing, walking, or bending. He reported being
self-employed and sitting at a desk four to six hours a day.
The examiner noted a small effusion of the knee with no
increased heat. The examiner did not detect any instability
of the knee. There was palpable crepitus. X-rays of the
left knee revealed osteoarthritic spurring medially with no
joint effusion, and post-traumatic changes in the proximal
tibia. Extension was to 0 degrees. Flexion was to 100
degrees, with pain on extreme flexion. There was no increase
in pain or loss of motion with repetitive motion. The
examiner noted a well-healed 8 inch surgical scar over the
medical aspect of the knee. There was no retraction,
erythema, or infection. The Veteran was diagnosed with
residuals of a left knee injury and degenerative joint
disease of the left knee.
On VA examination in January 2007, the Veteran provided a
history of gouty arthritis treated with medication and left
knee arthritis treated with Tylenol. During flare-ups of the
knee condition he would be bedfast for a few days and
required the use of a cane. X-rays revealed tricompartmental
hypertrophic spurs, moderate narrowing of the medial knee
joint compartment, and an old healed fracture of the proximal
tibia. The Veteran could extend to 0 degrees. Flexion was
to 110 degrees, with some discomfort. There was slight
tenderness on both sides of the patella. There was a well-
healed surgical scar on the medial aspect of the knee. While
the Veteran complained of knee buckling, the examiner found
no evidence of instability or subluxation. Repetitive motion
and flare-ups in pain did not produce further reduced range
of motion or increased pain or spasm in the knee. The
examiner diagnosed limited flexion of the left knee secondary
to a previous injury, along with degenerative arthritis of
the knee.
On VA examination in November 2007, the Veteran complained of
intermittent left knee pain on prolonged standing, walking,
or climbing. The Veteran also reported a long history of
gout. He described left knee swelling and redness,
associated with swelling of other joints, occurring
approximately once a month and lasting for three days. The
Veteran had been incapacitated a total of 21 days in the
previous 12 months with each occurrence at a time. The
swelling usually resolved with treatment for gout. The
Veteran denied additional weakness or restricted range of
motion of the knee during flare-ups. Functional restrictions
included limitations with walking, running, standing or
squatting. The Veteran wore a knee brace daily.
On examination, the Veteran's gait was normal. There was a
well-healed surgical scar over the medial left knee. The
left knee was stressed, revealing moderate laxity along the
medial collateral ligament region with stressing. The
Veteran was able to extend to 5 degrees, with pain at 5
degrees, and he could flex to 100 degrees, with pain.
Patella track was normal on the left knee without appreciable
laxity or crepitus. There was no additional weakness,
fatigability, dis-coordination, restricted range of motion,
or functional impairment following repetitive stress testing
against resistance times three. X-rays revealed degenerative
joint disease. The diagnosis was residuals of a left knee
injury with degenerative joint disease and moderate ligament
laxity along the collateral ligament joint line. The
examiner opined that the Veteran's frequent knee pain and
ligament laxity was related to his service-connected left
knee condition because there was historical evidence of
ligament laxity. Knee pain was aggravated by activities.
The examiner opined that the Veteran's left knee swelling was
related to his nonservice-connected gout, as other joints
would swell along with the knee and it was improved by
treatment for gout.
At the April 2009 personal hearing, the Veteran testified
that his left knee had worsened at the time he filed a claim
for an increased rating in 2004. He denied that the knee had
buckled or given way in over a year. The Veteran reported
wearing a brace for his left knee subluxation. He related
flare-ups in the left knee condition, resulting in limitation
of activities and pain, approximately twice a month.
As an initial matter, the Board notes that service connection
is not in effect for gouty arthritis. The VA examiner in
November 2007 distinguished between the symptoms related to
the service-connected left knee disability, degenerative
arthritis and laxity of the knee, and those attributed to the
nonservice-connected gout, swelling of the knee joint and
other joints, which reportedly caused him to become
immobilized. Accordingly, for purposes of rating the
Veteran's left knee disability, the Board will only consider
symptoms related to the service-connected left knee
disability.
Degenerative joint disease of the left knee with limitation
of flexion is currently assigned a 10 percent rating under
Diagnostic Codes 5010. Traumatic arthritis is evaluated
pursuant to the criteria found in Diagnostic Code 5010, which
directs the examiner to evaluate traumatic arthritis pursuant
to the criteria for degenerative arthritis found in
Diagnostic Code 5003. 38 C.F.R. § 4.71a. Degenerative
arthritis established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
When the limitation of motion of the specific joint or joints
involved is noncompensable under the appropriate diagnostic
codes, a rating of 10 percent is for application for each
such major joint or group of minor joints affected by
limitation of motion, to be combined, not added under
Diagnostic Code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In the
absence of limitation of motion, a 10 percent rating is
warranted with X-ray evidence of involvement of two or more
major joints or two or more minor joint groups, and a 20
percent rating is warranted with X-ray evidence of
involvement of two or more major joints or two or more minor
joint groups, with occasional incapacitating exacerbations.
The 20 percent and 10 percent ratings based on X-ray findings
will not be combined with ratings based on limitation of
motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1).
A claimant who has arthritis and instability of the knee may
be rated separately for arthritis or limitation of motion and
for instability. Rating a knee disability under both of
those codes does not amount to pyramiding. However, a
separate rating must be based on additional compensable
disability. 38 C.F.R. § 4.14; VAOPGCPREC 23-97 (July 1,
1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet.
App. 259 (1994). Separate ratings may also be assigned for
limitation of flexion and limitation of extension of the same
knee. Specifically, where a veteran has both a compensable
level of limitation of flexion and a compensable level of
limitation of extension of the same leg, the limitations must
be rated separately to adequately compensate for functional
loss associated with injury to the leg. VAOPGCPREC 9-04
(Sept. 17, 2004), 69 Fed. Reg. 59990 (2005).
Under Diagnostic Code 5260, limitation of flexion to 60
degrees is noncompensable. Flexion limited to 45 degrees is
10 percent disabling. Flexion limited to 30 degrees is 20
percent disabling. Flexion limited to 15 degrees is 30
percent disabling. 38 C.F.R. § 4.71a.
Under Diagnostic Code 5261, limitation of extension to 5
degrees is noncompensable. Extension limited to 10 degrees
is 10 percent disabling. Extension limited to 15 degrees is
20 percent disabling. Extension limited to 20 degrees is 30
percent disabling. 38 C.F.R. § 4.71a.
Normal range of motion of a knee is from zero degrees of
extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate
II.
Under Diagnostic Code 5257, a 10 percent rating is assigned
for slight recurrent subluxation or lateral instability of
the knee. A 20 percent rating is assigned for moderate
recurrent subluxation or lateral instability of the knee. A
rating of 30 percent is assigned for severe recurrent
subluxation or lateral instability of the knee. 38 C.F.R.
§ 4.71a.
On VA examination in March 2005, X-rays of the left knee
revealed osteoarthritic spurring medially with no joint
effusion, and post-traumatic changes in the proximal tibia.
Flexion was to 100 degrees with pain on extreme flexion.
There was no increase in pain or loss of motion with
repetitive motion. On VA examination in January 2007,
flexion was to 110 degrees with some discomfort. Repetitive
motion and flare-ups in pain did not produce further reduce
range of motion or increased pain or spasm in the knee. The
examiner diagnosed limited flexion of the left knee secondary
to a previous injury, along with degenerative arthritis of
the knee. On VA examination in November 2007, the Veteran
was able to flex to 100 degrees with pain. There was no
additional weakness, fatigability, dis-coordination,
restricted range of motion, or functional impairment
following repetitive stress testing against resistance times
three. X-rays revealed degenerative joint disease. The most
limitation of flexion shown, either 100 degrees or 110
degrees of flexion, does not more nearly approximates the
criteria under Diagnostic Code 5260 for the next higher
rating of limitation of flexion to 30 degrees. Therefore,
the Board finds that an increased rating of 20 percent is not
warranted, even considering any additional functional loss
due to pain. The evidence does not show any additional
functional loss that would limit flexion to such an extent as
to warrant a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59.
. The Board finds that the criteria for a compensable rating
are not met for limitation of flexion, so no separate rating
is warranted. The current 10 percent rating under Diagnostic
Code 5010 cannot be combined with a limitation of motion
rating.
On VA examinations in March 2005 and January 2007, the
extension was to 0 degrees. In November 2007, extension was
to 5 degrees, with pain at 5 degrees. Neither finding more
nearly approximates the criteria under Diagnostic Code 5261
for a compensable rating of limitation to extension to 10
degrees. Therefore, the Board finds that an increased rating
of 20 percent is not warranted, even considering any
additional functional loss due to pain. The evidence does
not show any additional functional loss that would limit
extension to such an extent as to warrant a higher rating.
38 C.F.R. §§ 4.40, 4.45, 4.59. The Board finds that the
criteria for a compensable rating are not met for limitation
of extension, so no separate rating is warranted.
In order to establish a 30 percent rating under Diagnostic
Code 5257, the evidence would require a showing of severe
impairment. However, the Board finds that the record shows
no more than moderate recurrent instability or subluxation of
the knee.
In 2008, the Veteran complained that his knee had buckled and
caused him to fall. The Veteran reported wearing a brace for
his left knee subluxation. On VA examination in March 2005,
the examiner did not detect any instability of the knee. On
VA examination in January 2007, while the Veteran complained
of knee buckling, the examiner found no evidence of
instability or subluxation. On VA examination in November
2007, the left knee was stressed, revealing moderate laxity
along the medial collateral ligament region with stressing.
Patella track was normal on the left knee without appreciable
laxity. The examiner found moderate ligament laxity along
the collateral ligament joint line. The Board finds that the
medical evidence shows that the Veteran's left knee is
productive of no more than moderate instability. There is no
finding of record to demonstrate any severe recurrent lateral
instability or subluxation. As severe recurrent subluxation
or lateral instability is not shown, the criteria for a 30
percent disability rating under Diagnostic Code 5257 have not
been met. 38 C.F.R. § 4.71a.
In considering the applicability of other diagnostic codes,
the Board finds that 5256 (ankylosis of the knee), 5258
(dislocation of semilunar cartilage), 5259 (symptomatic
removal of semilunar cartilage), 5262 (impairment of the
tibia and fibula), and 5263 (genu recurvatum) are not
applicable in this case, because the medical evidence does
not show that the Veteran has any of those conditions.
Specifically, the treatment records and VA examinations do
not demonstrate any objective finding ankylosis of the left
knee. Although X-rays of the Veteran's left knee revealed
post-traumatic changes in the proximal tibia and an old
healed fracture of the proximal tibia, malunion or nonunion
of the tibia and fibula is not shown. While the Veteran has
complained of knee buckling, no treatment record, or report
of VA examination demonstrates any objective finding of
dislocation of the semilunar cartilage or locking of either
knee. Finally, the Veteran has not undergone any surgical
procedures on either knee and genu recurvatum has not been
diagnosed.
VA examiners noted a well-healed 8 inch surgical scar over
the medical aspect of the knee. There was no retraction,
erythema, or infection. The scar has not been noted to be
either tender or deep. The evidence tends to indicate that
the scar is asymptomatic. Therefore, the Board finds that a
separate rating for a surgical left knee scar is not
warranted because the evidence does not show any ratable
symptomatology. 38 C.F.R. § 4.118, Diagnostic Codes 7800-
7805.
Although the Board is precluded by regulation from assigning
an extraschedular ratings in the first instance, the Board is
not precluded from considering whether the case should be
referred to the Director of VA's Compensation and Pension
Service for a rating. The threshold factor for
extraschedular consideration is a finding that the evidence
presents such an exceptional disability picture that the
available schedular ratings for that service-connected
disabilities are inadequate. That is accomplished by
comparing the level of severity and symptomatology of the
service-connected disability with the established criteria.
38 C.F.R. § 3.321(b)(1).
If the criteria reasonably describe the Veteran's disability
level and symptomatology, then the disability picture is
contemplated by the Rating Schedule, and the assigned
schedular evaluation is adequate. Therefore, referral for an
extraschedular rating is not required. Thun v. Peake, 22
Vet. App. 111 (2008).
Here, the rating criteria for the Veteran's left knee
disability reasonably describe the Veteran's disability level
and symptomatology, and provided for higher ratings for
additional or more severe symptoms, which have not been
shown. Therefore, the Board finds that the disability
picture is contemplated by the Rating Schedule, and the
assigned schedular ratings are adequate. Consequently, the
Board finds that referral for extraschedular consideration is
not required under 38 C.F.R. § 3.321(b)(1).
Additional Compensation for a Dependent Child
After having carefully reviewed the evidence of record, the
Board finds that the evidence does not support the grant of
an effective date prior to September 1, 2007, for adding the
Veteran's son, W.D., as a dependent child based upon school
attendance.
In December 2005, the Veteran submitted Request for Approval
of School Attendance letters for W.D. and K.D. He indicated
that both dependents were attending high school. W.D.'s date
of birth was August 16, 1988, and he turned 18 in 2006. The
Veteran was notified in a November 2006 VA letter that his
award would be reduced effective June 1, 2006, due to the
loss of a dependent child. An October 2006 correspondence
from Sweeny High School confirmed that W.D. had been a high
school student of that institution until May 26, 2006, and it
was the author's belief that W.D. had enrolled in college.
In November 2006, the Veteran submitted a statement wherein
he indicated that W.D. and K.D. were both unmarried dependent
children who were full time students at approved educational
institutions. That statement requested that benefits for
dependents be reinstated. In correspondence dated in
December 2006, VA requested the Veteran to complete the
enclosed VA Forms 21-674, Request for Approval of School
Attendance, to determine whether additional benefits for W.D.
and K.D. were authorized based on continued school attendance
at an approved institution. In December 2006, the Veteran
submitted VA Form 21-674, which confirmed that K.D. was
attending the University of Central Arkansas. No VA Form 21-
674 was received for W.D. In a decision issued in May 2007,
the DRO found that entitlement to additional payment for K.D.
was warranted, but not for W.D. because the Veteran had
failed to provide evidence that W.D. continued in school past
his 18th birthday. The Veteran did not timely appeal that
decision.
In July 2008, the RO received VA form 21-674, Request for
Approval of School Attendance, for W.D. The Veteran reported
that the W.D. was a student at the University of Central
Arkansas since August 2006 and was expected to graduate in
August 2010.
In a VA letter to the Veteran later in October 2008, the
Veteran's VA compensation benefits were adjusted to include
W.D., effective September 1, 2007. The Veteran timely
appealed that decision, requesting an earlier effective date
for payment of dependent benefits for W.D.
The Board has examined that evidence of record, but finds
that the documentation in the claims file prior to the July
2008 VA Form 21-674, does not definitely show that W.D. had
entered college. A claim for additional benefits for W.D.
was denied in May 2007 and was not timely appealed. At the
time of that claim, no VA Form 21-674 had been received for
W.D. subsequent to his graduation from high school.
Therefore, that denial is final. 38 U.S.C.A. § 7105. The
duty to assist is not a one-way street. If a veteran wishes
help in developing his claim, he cannot passively wait for it
in those circumstances where he may or should have
information that is essential in obtaining putative evidence.
Wood v. Derwinski, 1 Vet. App. 190 (1991).
The regulations provide that additional pension or
compensation may be paid from a child's 18th birthday based
upon school attendance, if the child was at that time
pursuing a course of instruction at an approved educational
institution, and a claim for such benefits is filed within
one year from the child's 18th birthday. 38 C.F.R.
§ 3.667(a)(1). W.D. was 18 years old in August 2006. A
previously filed claim for benefits was finally denied in May
2007. A subsequent claim for benefits based on school
attendance with VA Form 21-674 form was not received by VA
until July 2008. Therefore, the Board finds that the claim
upon which the benefits were granted was not received within
one year following W.D.'s 18th birthday.
The pertinent regulation allows for payment from the
commencement of the course, if filed within one year from
that date. 38 C.F.R. § 3.667(a)(2). As the Veteran filed a
claim in July 2008 that notified VA that W.D. had been
attending college for, the effective date for adding W.D. as
a dependent would be September 1, 2007, the beginning of the
fall semester within the current school year. An effective
date earlier than that is not available because the claim for
benefits was finally denied in May 2007. The July 2008 claim
supported payment from commencement of the most recent school
term in September 2007.
At the personal hearing in April 2009, the Veteran testified
that in December 2006, he submitted VA forms 21-674, for K.D.
and W.D. The Board finds that there is no evidence that the
Veteran submitted a VA Form 21-674 for W.D. prior to July
2008. The claims file does not contain that form for W.D.
prior to July 2008 and subsequent to his graduation from high
school. There is a presumption of regularity under which it
is presumed that government officials have properly
discharged their official duties. United States v. Chemical
Foundation, Inc., 272 U.S. 1 (1926). Therefore, it must be
presumed that VA properly discharged its official duties by
properly handling all forms submitted by the Veteran. The
presumption of regularity is not absolute; it may be rebutted
by the submission of clear evidence to the contrary.
However, the Veteran has not submitted any evidence in
support of his contention other than his statements, which do
constitute the type of clear evidence to the contrary which
would be sufficient to rebut the presumption of regularity.
Jones v. West, 12 Vet. App. 98 (1999); Mindenhall v. Brown, 7
Vet. App. 271 (1994).
The Board finds that the preponderance of the evidence is
against the appellant's claim for benefits for W.D. prior to
September 1, 2007, because the evidence shows that claim was
finally denied in May 2007 and that the July 2008 reopening
of the claim would support an effective date only to the
beginning of the most recent term in September 2007.
Therefore, the claim for an earlier effective date is denied.
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for a right hand condition, to include as
secondary to a service-connected left knee disability, is
denied.
Service connection for a right elbow condition, to include as
secondary to a service-connected left knee disability, is
denied.
Service connection for a bilateral foot condition, to include
as secondary to a service-connected left knee disability, is
denied.
A rating higher than 20 percent for residuals of a left knee
injury with instability is denied.
A rating higher than 10 percent for degenerative joint
disease of the left knee with limitation of motion is denied.
An effective date earlier than September 1, 2007, for
additional compensation for a dependent child based upon
school attendance, is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs